If you have recently lost a family member you may be surprised to discover that the Will left behind seems to be blatantly unfair. You may have expected to receive a much larger portion of the estate, or a beneficiary has been included who had little to do with the testator.
What can you do about an unfair Will?
A family provision claim enables an eligible person to claim provision from an estate if it can be shown that the deceased person failed to make adequate provision for the applicant’s proper maintenance, education, and advancement in life. If successful, the terms of the Will can be changed in your favour, giving you a share, or greater share of the estate.
The eligibility to bring a family provision claim varies from state to state. The following is a guide only, and you should contact us to discuss your particular circumstances, but eligible persons usually include:
- a spouse of the deceased;
- a de facto partner, in certain circumstances;
- a former spouse, in certain circumstances;
- a child, stepchild or adopted child of the deceased;
- certain dependents of the deceased, meeting certain criteria
Family provision claims are often settled without having to go to court. Depending on the circumstances, an executor of an estate who is served with a reasonable and justifiable claim may be advised to negotiate or settle the claim rather than defend it. The executor’s role is to preserve the assets of the estate and an out-of-court settlement may be in everybody’s interests with less risk of incurring additional legal costs and depleting estate assets.
Is there a time limit to make a family provision claim?
Yes, there is. Generally, you have only 6 months from the date of death to give notice that you have been left without proper provision and 9 months from date of death to institute proceedings. In some instances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.
How do I prove the Will is unfair?
In determining whether a Will is unreasonable, a court will look at the entire circumstances. The degree to which the deceased had a moral obligation to provide for you is assessed in light of the proposed distribution of the estate. Your personal circumstances, age, health, needs and financial situation are taken into account as well as the competing needs of other beneficiaries.
Available evidence regarding the deceased’s obligations and intentions towards you is also relevant as is the nature and length of the relationship you had with the deceased. Any financial and non-financial contributions made to the property of the deceased person or to the family or personal welfare of the deceased, are also important considerations.
Our lawyers have assisted many clients in this area and will discuss the eligibility criteria and assist in making the claim or negotiating a settlement with the estate.
Challenging the validity of a Will
In addition to family provision claims, there are other types of estate disputes that may be brought by beneficiaries or other interested parties.
You can challenge a Will if you believe that it is a forgery or if the person lacked the mental capacity to make the Will. These types of claims often arise when the deceased was elderly and sick for long periods or suffered from dementia or other form of memory loss.
You may also be able to challenge a Will on grounds of undue influence. Undue influence is where somebody exerts an unreasonable level of influence over a will maker which results in them preparing a Will contrary to how they might otherwise – usually leaving assets or additional assets to the person who exerted the undue influence.
Allegations of fraud may be raised regarding the authenticity of the signatures on a Will.
Other types of estate litigation include disputes between executors, beneficiaries and other interested parties (for example the parents of child beneficiaries) over matters such as the interpretation of the terms of a Will, obvious errors or mistakes in a Will or claims to remove an executor from his or her position.
Where to next?
Family circumstances and histories can be complicated and the disputes that arise in the context of a deceased estate may have been years or even generations in the making.
Given the potential ramifications at both a financial and personal level it is important that you engage experienced lawyers you can trust. If you find yourself or a loved one in this position, please contact us to discuss your matter. We will assess your claim and review your options. We will negotiate with the aim of resolving your case as efficiently and cost effectively as possible, however, should the matter proceed to litigation, we will represent you in court and advocate strongly on your behalf.